Empirical evidence from Tanzania suggests that the problem of local recognition of paralegals may not be fully resolved by the model provided in the recent statute. This article analyses the local social, legal and political context in which paralegals work and explores an alternative model for recognition of their leadership role.
It focuses particularly on land conflicts, which represent the leading legal problem in Tanzanian communities LSF This presents particular obstacles for both women litigants and paralegals when power is manifested through different forms of violence during the course of a legal dispute.
The second part analyses the relationship between gender, power and rights, and the forms of violence that accompany the exercise of power in legal disputes. There has been a particular focus on paralegal initiatives, which are now widely seen as a solution for legal empowerment in countries where legal aid services for the poor have historically been severely under-resourced.
There has been significant debate surrounding what legal empowerment actually means and the normative commitments that legal empowerment policies entail. These legal tools or activities represent policy solutions designed to facilitate access to justice for the poor.
At the community level, paralegals often work as facilitators under the umbrella of civil society organisations in the implementation of legal empowerment initiatives. CLEP policies largely follow the legal tools interpretation, which reflects a human rights-based view of how law is used, placing emphasis on information provision and legal education for the poor. Parallel development discourses on the empowerment of women and girls more generally, have also tended to emphasise capacity-building of the individual in various social, economic and political contexts.
This is because they are based on a normative conception of human rights that is fundamentally different from the roots of African struggles for rights against all forms of oppression, including imperialist oppression Mamdani ; Manji ; Nyamu-Musembi ; Cornwall and Nyamu-Musembi This means that development agencies engaged in rights-based approaches need to be critically self-aware of their normative standpoint and the inherent power inequalities in their work Cornwall and Nyamu-Musembi , It is important to see this normative approach in full historical context.
She argues it has continued into the present through on-going interventions by American and European governments to transplant idealised versions of Western legal frameworks and the rule of law in other parts of the world. From an African feminist perspective, Nyamu-Musembi argues that in the post-Cold War epoch, Western governments and international economic institutions focused on the rule of law as a necessary precondition for establishing a market economy and democratic rule.
The consequence was few substantive gains for gender equality Nyamu-Musembi , Critics of individualistic approaches to human rights and empowerment also point to the need to deal with the power asymmetries embedded within social, economic and political structures Kabeer ; Cornwall and Rivas However, these authors argue that they have received insufficient attention in the design and implementation of many internationally initiated legal empowerment programmes Ubink and van Rooij ; Carmona and Donald This in part reflects a lack of consensus over whether law itself represents a tool of empowerment Sage et al.
Rights-based approaches lean towards the former. For example, while recognising the role and importance of customary and traditional justice systems in local communities, the CLEP interpretation adopts a state-centralist approach to strengthening access to justice in plural legal contexts.
It does so by using the principle of the rule of law and statutory regulatory frameworks as a touchstone, and the provisioning of legal services as the mechanism for strengthening the capacity of the poor to make legal claims.
Scholars who have reflected on this side of the rule of law focus particularly on the inequalities of power that shape legal processes Cotula , ; Cotula and Mathieu ; van de Meene and van Rooij , It evokes an image of law as a double-edged saw: a productive tool that cuts both ways, representing both the principle of the rule of law and its sharpness. To extend this metaphor a little further, in practice those who have the social, financial or educational resources can use this saw to assert their rights through litigation.
Conversely, those who lack power or resources to make effective use of the saw may find it turned against them. In such circumstances, law may be little more than a blunt or weak tool of last resort Dancer , Ethnographic studies of local courts in Botswana, Kenya and Tanzania have found gendered discourses and power relations in the community to be reproduced through court processes, particularly where customary and religious norms concerning land, marriage and inheritance are concerned Griffiths ; Hirsch ; Dancer It is this second, activities approach, which calls for a more substantive notion of understanding the ways people try to access justice and why power relations matter.
More recently, legal pluralism scholars, and some international development organisations, have turned attention to how to strengthen access to justice and the rights of marginalised social groups in the context of customary justice systems. In African plural legal systems, traditional or customary justice systems interact with state legal systems.
The relationship between these systems, the role of traditional leaders and the recognition of customary justice by states vary considerably. Moving away from the legal tools approach, these customary legal empowerment initiatives have engaged communities themselves in debates around local norms and social practices and their interaction with constitutional rights Golub ; Ubink a , b , c , d. The normative underpinnings of these initiatives have included promoting social inclusivity, gender equity and community consensus Ubink a , b , c , d.
However, their decentring of the role of the state and attention to local context and power relations means that local communities and marginalised groups within them retain power in the decision-making process and outcomes. In spite of the fact that some legal empowerment programmes, as described above, have focused on structural issues surrounding power asymmetries, most mainstream legal empowerment programmes have been oriented towards developing the capacity or agency of individuals and marginalised groups to help themselves.
This may include work around legal aid provision, but it is primarily concerned with equipping citizens with the knowledge and tools to engage with legal systems Golub ; Waldorf However, a fundamental challenge for litigants and those who support them is how to negotiate existing power relations in realising their rights.
The more recent programmes for customary legal empowerment have paid greater attention to the impact of power relations on norms and community structures.
In both kinds of programmes, constitutional rights have been seen as potential sources of empowerment for citizens, either as tools for capacity-building, or as normative frameworks to advocate for change in local customary laws, where they are in conflict. The limitation of most legal empowerment programmes in pluralist legal contexts is that they focus on the user of legal services, while failing to give sufficient attention to the power relations that constitute barriers to justice.
The challenge for women claimants, and those who support them, is how to effectively negotiate these power relations in practice. This in turn offers a theoretical framework for placing legal empowerment and paralegal programmes in social, legal and political context. This provides a theoretical basis for analysing the capacity of paralegals to act within local networks of capillary power. His theory of rights is instrumentalist, but it is also qualified by the principle that individual subjectivity is constituted as the effect of power and rights. Foucault argues that rights claims are simultaneously constructed and constrained by laws, norms, power relations and social structures.
Feminist scholars writing on power and rights in African legal systems have argued that the privileging of legal centralism and state law is itself phallocentric. Women also impact upon, transform and undermine norms when making claims Manji A further dimension of feminist analysis is the prevalence of violence in legal disputes.
However, little attention is given within legal empowerment discourses to the connection between gender, power and violence in plural legal systems. A recent psychological study by Grabe et al. Using data from women, the findings show reduced levels of physical and psychological violence where women own land in regions where land ownership is associated with dominance Grabe et al.
This also helps to explain why, in legal systems that are embedded in patriarchal social relations, women and men experience the effects of violence differently. While the legal tools approach to legal empowerment pays insufficient attention to the politics of rights and power relations in practice, the activities approach does not fully confront the gendered systemic challenges faced by women in resisting violence.
This approach goes beyond mainstream policy discourses.
This raises questions concerning the position and power of paralegals within the community. What is their source of authority? How should they work with already established leaders? What makes them effective leaders within the communities they serve? Writing on gender power, leadership and governance, Duerst-Lahti and Kelly point out that leadership, like governance, is inherently relational and involves influence of followers, tasks or culture Duerst-Lahti and Kelly , Together, gender, power and leadership are mutually reinforcing. Duerst-Lahti and Kelly argue that the perception of power grants an individual an advantage in being accepted as a leader.
If one is a leader, one is more likely to be seen as powerful. Because in most communities men have more social power and hold more political leadership posts, they benefit more in the relationship between leadership and power. This means that quotas for women in leadership roles are not in themselves an adequate solution.
Leaders must also have social power. The next part analyses the way gender, power and leadership work in the resolution of land disputes and the implications this has for legal empowerment. In Tanzania, people can acquire land in different ways, each embedded in its own set of power relations. During a year of ethnographic research conducted in Arusha, Tanzania between and , I explored the ways in which gendered power relations become manifested when women make legal claims to land Dancer Family and clan land is inherited or transferred inter vivos through patrilineal or matrilineal descent practices.
Power relations between spouses affect the way women and men acquire and register land individually or jointly through purchase or lease, or by clearance and cultivation. Each mode of acquisition confers on the occupier of the land corresponding legal rights and social duties concerning use and disposition.
Where village land is passed between the generations of a family, gendered and intergenerational customary tenure relations are constructed over the land. These customary ties restrict dispositions without the consent of key family members and village leaders involved in land administration. Village and ward executive officers play an important role as both members of local government development committees and overseers of the workings of local land tribunals.
Their roles straddle both executive and judicial branches of local government. This means that social power relations over land within families are also situated in local political and legal power structures where executive and judicial powers are fused.
In village communities, local community leaders balozi and mwenyekiti wa kitongoji are elected by the residents of a street or sub-area within a village to deal with a range of administrative and dispute resolution duties. These leaders mediate disputes within a community and are also called upon as amicus curiae by village and ward tribunals in the adjudication of land disputes.
They confirm boundaries to the land and interests in the land in communities where land registration is still uncommon. They may be influential decision-makers in land tenure matters and may have close connections with adjudicators in land tribunals at village or ward level.
It is not uncommon for these local community leaders to be appointed subsequently as ward tribunal members. These power relations intersect social, political and legal spheres in a local community. They therefore raise challenges for litigants, particularly women, who must negotiate the micropolitics of patriarchy embedded within local land tenure and legal systems.
The case studies from Arusha, Tanzania Dancer reveal various forms of violence at the hands of litigants, family and community members, local leaders and officials.
These range from cursing, intimidation and false criminal claims, to the destruction of crops and physical assaults, to bribery and manipulation of legal and administrative processes. These include carrying out educational programmes on legal issues and procedures of concern to the community; assisting legally aided persons with obtaining necessary legal documents, and guiding them to access justice; and advising conflicting parties to seek amicable settlement or referring them to dispute settlement institutions.
The Act therefore places special emphasis on the pacific and educational role of paralegals, and as with other countries, it does not give paralegals the authority to represent litigants in court. This limits the pool of potential candidates, particularly in rural areas.